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8 Nat'l Sec. L.J. 1 (2021)

handle is hein.journals/nseclj8 and id is 1 raw text is: 20211 Maritime Espionage and the Legal Consequences of the United I
States'PotentialRatification of the United Nations Convention
on the Law ofthe Sea
MARITIME ESPIONAGE AND THE LEGAL
CONSEQUENCES OF THE UNITED STATES'
POTENTIAL RATIFICATION OF THE UNITED NATIONS
CONVENTION ON THE LAW OF THE SEA
Todd Emerson Hutchins*
This paper explores the potential ramifications ofratifying the United
Nations Convention on the Law of the Seas (LOSC) on the United States'
maritime espionage policy and operationalpractices. Part I briefly reviews
the legality ofmaritime espionage, particularly focusing on intelligence
collection outside oftraditionalarmed conflict situations. Part IIexplains
the Law of the Sea and coastal state securityin the innocent passage regime
presumably codified in the LOSC Part III considers policy and practice
with respect to maritime espionage, interestingly observing divergent trends
between treaty law development and state practice, particularly with regard
to nearshore espionage under the theoretical 'non-innocent passage'regime.
This part considers consistency of United States policy and practice with the
LOSC's Article 19, which forbids intelligence gathering' during innocent
passage. Part VI considers possibilities for the United States to consider
when assessing whether to ratify the LOSC; namely, the overall benefits and
costs, the package deal'nature of the LOSC, ways the LOSC may constrain
United States maritime espionage practice, and the potential risks of these
issues being litigated in an international forum. Finally, this paper
concludes by stressing the need for senators and the intelligence community
to carefully discuss the impacts ofaccession to the LOSC on maritime
espionage. The United States should not accede to the LOSCifunwilling or
unable to abide by its maritime espionage rules.
*Lieutenant Commander, Judge Advocate General's Corps, United States Navy.
J.D.- Univ. California Berkeley, L.L.M - The George Washington University.
DISCLAIMER: The views expressed are the author's and do not reflect the official
policy or position of the U.S. Navy, DoD, or the U.S. gov't.

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